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Litigation News Archive

Boston Bar Journal: View from the Bench

by Judge Mitchell Kaplan

I was appointed an associate justice of the Superior Court just before my 59th birthday, after having practiced law for about thirty-one years. It still feels as if I was just appointed, but, in fact, I am completing my third year on the bench. From the time I began my tenure as a judge, like every other new judge who practiced law for a number of years, I was frequently asked what surprised me most about the view of the courtroom from my new vantage point. I tried to provide answers that were thoughtful, or, sometimes at cocktail parties, humorous (not too originally, I told the story of objecting to a question during my first trial and then, with some embarrassment, sustaining myself), but I think my comments were for the most part trite and not particularly insightful. Writing this piece on the third anniversary of my appointment forces me to be more reflective.

My experience with a case I presided over for only a few days very soon after my appointment is a good place to start. My first formal three-month assignment was to a civil session in Suffolk. Late Thursday afternoon of my first week, I was handed a motion for a temporary restraining order: a financial institution was seeking to restrain the commissioner of a state agency from revoking its license to operate without an administrative hearing. According to the plaintiff, this would create havoc for many borrowers with loan commitments and cause its many employees to lose their jobs. I took the bench. Only the plaintiff’s lawyers were present. I inquired whether the Attorney General’s office had been notified and learned that it had, but plaintiff’s counsel reported that he had been told that no assistant AG would appear that afternoon. I told the lawyers that I would conduct a hearing the next morning at10:00o’clock and they should tell counsel for the agency that I expected the agency’s attorneys to be present. That made me feel like a judge: I had just expressed an expectation that would certainly be treated like an order. I tried not to let it go to my head.